United States Office of Water
Environmental Protection Enforcement (EN 335)
Agency Washington DC 20460
A Guide for States
on the Proposed
Consolidated Permit
Regulations
-------
This Guide discusses the proposed regulations
consolidating the procedures which govern issuance
of permits under tour environmental statutes, as
these new regulations pertain to State admimstratioi
ot those programs, live proposed regulations were
published in the Federal Kegister on June 14, 19/9.
TU OBTAIN CUPlliS OK THE REGULATIONS OR GUIDES
Write to:
U.S. environmental Protection Agency
Public Information Center (PM 21b)
401 H Street, S.W.
Washington, D.C. 20460
TABLE: OF CONTENTS Page
I. A HEEU AND A RESPONSE z
II. THE ADVANTAGES OF CONSOLIDATED 6
PERMITTING
111. THE STRUCTURE OF THE PROPOSED 7
REGULATIONS
IV. REQUIREMENTS FOR STaTE PROGRAMS 9
General Program Requirements 10
State Hazardous Waste Management Programs 11
State UIC Programs 12
State NPDtS Programs 14
State 404 Programs 14
V. WHEN SHOULD STaTES APPLY? 15
VI. EPA RESPONSIBILITIES AFTER PROGRAM APPROVAL 17
VII. SOME APPROACHES TO STATE IMPLEMENTATION 17
VIII. ABOUT PUBLIC COMMENTS AnU PARTICIPATION 19
IN HEARINGS
AW '
-------
A GUIDE TO STATES ON THE PROPOSED
CONSOLIDATED PERMIT REGULATIONS
I. A WEED AND A RESPONSE
The role of State governments in protecting
our Nation's environmental resources has grown
steadily. Legislation enacted both by the States
and the Federal government has produced a number
of programs for establishing and enforcing
environmental standards. However, much of this
legislation resulted in single-purpose programs
having little coordination with other programs
with similar or complementary responsibilities.
As indicated in a recent study by the Council of
State Governments, this approach to environmental
regulation has produced a system of uncoordinated
permit requirements, overlapping jurisdictions,
and sometimes contradictory pollution control
standards. The report stated:
Increased efforts to promote environmental
quality have generated a rapid growth
in the number of permits required for:
development. For many proposed projects,
numerous permits are needed, often from
many different government agencies at the
local, Regional, State and Federal levels.
This proliferation of permits has created a
multitude of problems for permit applicants,
concerned citizens, and State governments...
In short, the regulation system has
become a maze...appl icants must spend
exorbitant amounts of time and money both
for determining what permits are required
and securing decisions on those permits.*
^Untangling the Permit Web: Washington's Environ-
mental Coordination Procedures Act, James E. Jarrett
and Jimmy Hicks, The Council of State Governments,
Lexington, Kentucky, June 1978 (RM 627).
-------
The U.S. Environmental Protection Agency
believes that environmental regulatory programs
can be more effective if they are developed and
implemented in a coordinated and consistent
manner. Therefore, EPA has proposed consolidated
permit program regulations and an application
form which were published in the Federal Register
on June 14, 1979 (44 FR 34244 and 44 FR 34346).
These regulations consolidate requirements for
the following five permit programs under four
Federal environmental laws:
° the Hazardous Waste Management {HWM)
program under the Resource Conservation
and Recovery Act;
° the Underground Injection Control (UIC)
program under the Safe Drinking Water
Act;
0 the National Pollutant Discharge Elimination
System (NPDES) program under the Clean
Water Act;
° the Prevention of Significant Deteriora-
tion (PSD) program of the Clean Air Act, but
only where EPA is the permitting authority;
and
° State section 404 {Dredge or Fill) programs
under the Clean Water Act.
Table I provides a synopsis of these
programs. A more complete picture of each program
may be obtained by reading the other pamphlets in
this series. A list of guides covering the
programs involved in the consolidation effort is
given on the inside back cover of this pamphlet.
Through its efforts to consolidate regulations
for these permit programs, EPA is seeking to
streamline its own procedures and requirements
3
-------
TABLE I
Name
Abbrev
| Com
1
Coverage I 122
sol it
in
123
Lated | |
j jTechnical
124 I Act [ Requirements
Comments
Hazardous Haste
Management Program
HUM
generation, trans- |Yes
portation, treatment,|
storage, disposal of j
hazardous vaste I
Yes
Yes |Resource | 40 CFR 250*
|Conservation& j
|Recovery Act |
i 1
States may take program,
or EPA Issues permits,
6 mos, after regs final
Underground
Injection Control
Program
DIC
well injection/ |Yes
protection of j
drinking water j
aquifers 1
Yes
Yes |Safe Drinking) 40 CFR 146**
jWater Act 1
1 I
I 1
listed States have 270
days after regs to
assume program
Rational Pollutant
Discharge £linlna-
tion System
NPDES
discharge of |Yes
wastewater into |
waters of the U.S. j
Yes
Yes
Clean Water | 40 CFR 125
Act 1 and Subchap-
1 ter N
50,000 permits issued,
70,000 sources identi-
fied
Dredge or Fill
Prograa
404
discharge of |0nly
dredged or fill [Subpart
material, often j A
in wetlands j
1
Yes
Only
Subpart
A
Clean Water | 40 CFR 230***
Act j
1
1
1
C0E or State operates
program, EPA approves
transfer of authority
over certain waters to
States
Prevention of
jSignificant
(Deterioration
1
1
PSD
emission of |Ho
pollutants from j
sources in j
attainment areas {
t
So
Yes
Clean Air | 40 CFR 52
Act j
1
1
1
regs only apply to EPA
programs,not to State
programs
* Proposed at 43 FR 58946 (December 18,1978), 43 FR 18506 (April 28, 1978), and 43 FR 29908 (July 11, 1978)
** Proposed at 44 FR 23738 (April 20, 1979)
*** Proposed at FR (July , 1979)
-------
so that the programs it administers are more
effective in protecting the environment, less
costly and more understandable. EPA, wherever
possible, will consolidate its review of all
permits required for a single facility under
these permit programs. However, even where such
consolidated review of multiple permits is not
appropriate or possible, these regulations will
provide consistent and predictable requirements
for the various EPA permit programs.
While these regulations propose the require-
ments for State permit programs which may be
suDStituted for an EPA program, they do not
require States to consolidate their permitting
activities. Nonetheless, these regulations
should help States to coordinate and consolidate
permitting if they wish by making the requi rements
for the various programs consistent and complementary.
This Guide introduces the concepts behind
the consolidated permit approach. It also
highlights the regulatory changes and benefits
that are likely to result from consolidation.
EPA encourages you, whether you are a State
official or an interested citizen, to obtain and
review the complete proposals and submit written
comments for the record (see Section VII below).
You are also invited to participate in hearings
that have Deen scheduled on the proposed regulations.
EPA will publish final regulations only after a
careful review of comments, which are expected to
play a major role in revising the proposed regulations
The proposed regulations are not engraved
in stone. EPA is particularly interested in
suggested changes which will make the programs
covered by the regulations function more efficiently,
make the transition to State administration
smoother, and make the programs more susceptible
to integration.
5
-------
II. THE ADVANTAGES OF CONSOLIDATED PERMITTING
The aim of EPA's effort in consolidating
permit regulations is to increase the quality of
environmental protection while reducing the
regulatory burden on industry and government by
assuring that requirements are consistent
and coordinated. Although the differing require-
ments of the various Acts create some irreducible
differences, EPA has proposed, to the extent
possible, one basic system for the processing of
all permits.
Coordinating and consolidating the various
permit programs fosters a more thorough awareness
of all the significant waste discharges from a
facility which, in turn, promotes a comprehensive
approach to waste management. In the past, each
permit program acted independently, without
regard for how the imposition of controls affected
discharges into other media. For example, NPDES
limits on hazardous waste discharge may have
encouraged certain facilities to dispose of these
wastes into injection wells. Such practices
merely shifted the problem from surface waters to
underground aquifers, resulting in the contamination
of drinking water supplies. EPA's effort aims
toward a comprehensive residuals management
through consolidated permitting.
Under the consolidated approach, those facilities
which require multiple permits from EPA will be
able to obtain these permits in a single process.
The terms and conditions of the permits, the
permit reviews, and public participation would
all be based on the unified set of regulations
for consolidated permitting. Moreover, the
Agency has proposed to use a single application
form for NPDES, RCRA, and UIC permits for any
facility or source.
6
-------
EPA believes that its consolidated permitting
approach will encourage similar action at the
State level, although consolidation by States is
not required. States may apply for one program
or for more than one, and they may do so at
different times. At any time, a State may be
administering some programs and EPA others. The
proposed regulations merely facilitate consolidation
to the extent that a State finds consolidation
useful and feasible. Likewise, when administration
of programs is divided between EPA and a State,
the State may, but is not required to, enter
into joint processing agreements with EPA.
IH. THE STRUCTURE OF THE PROPOSED REGULATIONS
The consolidated regulations are divided
into three Parts of Title 40 of the Code of
Federal Regulations:
Part 122: Descriptions of the Permit
Programs: NPDES, Hazardous
Waste, UIC and 404
Part 123: State Program Requirements
Part 124: Procedures for Decision-Making
Each Part includes provisions which are
generally applicable, as well as program-specific
requirements. The general provisions are included
in Subpart A of each Part. The additional
requirements for each program are in the program-
specific Subparts {B,C,D,E, or F).
The technical requirements and criteria for
the programs are not contained in these regulations
but are found elsewhere in the Code of Federal
Regulations. For example, Part 122 does not
specify how underground injection wells are to be
constructed. These construction requirements
7
-------
will be contained in 40 CFR Part 146. Nonetheless,
Part 122 does require that UIC permits be written
to assure compliance with these Part 146 requirements.
Table I shows the relationship of these various
regul ations.
Part 122 generally describes the program
requirements and gives definitions. The consolidated
regulations use the same or consistent definitions
for terms applicable to the NPDES, RCRA, IIIC and
section 404 programs to the extent allowed by
law. For example, the term "hazardous waste",
which is used in both the UIC and Hazardous Waste
Management programs, is based on the definition
contained in Section 3001 of RCRA. Likewise, the
EPA process for applying for and issuing permits
has been made consistent.
Part 123 deals with State programs. It
governs the process for obtaining EPA approval
of State permit programs. It also governs the
process for modification and withdrawal of State
programs, and the requirements for administration
of State programs. Most of the administrative
requirements for State programs are identified by
cross-referencing requirements from Parts 122 and
124. Only those provisions of Parts 122 and 124
which are specifically cross-referenced apply to
the operation of State programs.
Consolidation of program regulations does
not change the requirements for State administration
of the programs in any of these areas. The
regulations covering each program would be
substantively the same whether or not they were
published in a consolidated form. Publishing them
together 1) creates common formats for similar
components for obtaining EPA approval for State
administration (for example, the Attorney
General's Statement--see below); and 2) makes
integration of the programs easier.
8
-------
Part 124 governs the processing of permits
issued under the consolidated regulations,
including the EPA administrative appeals process.
The procedures for administrative appeals are not
applicable to State programs; however, some of
the other permit processing requirements (e.g.,
the formulation of draft permits, public notice
ana comments, fact sheet requirements, etc.) are
applicable to State programs.
IV. REQUIREMENTS for epa's approval of state programs
Each of the permit programs included in the
consolidated regulations may be administered by a
State instead of the Federal government. This
accords with the Congressional mandate of each of
the Federal statutes which shows a preference for
State administration of permit programs.
There is no requirement in the proposed
regulations for consolidation of NPDES, Section
404, UIC, and RCRA programs at the State level.
States may seek approval to administer any
program independent of administration of the
other programs; thus, a State may administer one
or more programs while EPA (or, the Corps in the
case of the section 404 program) administers the
others. Even if a State has program approval for
all programs, consolidation is not mandatory.
However, certain States have initiated similar
programs for streamlining their environmental
permit approval process. This trend is expected
to continue in the future, and the proposed
regulations are designed to encourage State
program consolidation efforts.
9
-------
To obtain program authority, States must
ensure that their programs will comply both with
the general program requirements and the additional
program-specific requirements set forth in Part
123 and summarized below.
General Program Approval Requirements
To obtain EPA's approval to administer a
permit program, a State must submit an application
which includes a complete description of its
proposed program, copies of applicable State
laws, a Memorandum of Agreement with EPA's
Regional Administrator, and a statement from
the State Attorney General. The program description
should detail how the State intends to operate
its program. It should include information on
tne processes, priorities, and resources for
permitting, compliance monitoring and enforcement.
The Memorandum of Agreement details the working
relationship between the State and EPA. The
State Attorney General's statement should certify
that tne State has adequate legal authority to
operate the proposed program under State >aw
and in compliance with applicable EPA regulations.
These regulations propose a set of minimum
requirements for each program, but States may
impose more stringent controls as appropriate.
One exception to this principle is the hazardous
waste program where the law requires that State
programs be consistent with the Federal program
and the programs in other States. Also, States
may not ban or seriously impede the movement of
hazardous waste to permitted facilities.
States are expected to devote sufficient
resources to assure adequate program operation.
This includes an enforcement program with at
least the same authorities for insuring compliance
with all program requirements as are available to
EPA, including civil penalties, criminal fines
and injunctive relief. In addition, the proposed
regulations require States to have at least the
same maximum penalties as are available to EPA.
10
-------
Upon receipt of a complete submission for
approval of a State program, EPA's approval
process is governed by the appropriate statute.
Each of these are different so there cannot be
one general program approval process; however,
these regulations make the processes as consistent
as possible within the constraints of the different
Acts. The different processes are described in
each of the program Subparts.
State Hazardous Waste Management Programs
State Hazardous Waste Management programs
may be granted one of two types of approval. EPA
may authorize the States to operate the program
on an interim basis ("interim authorization") for
up to two years. During this period, States need
only control off-site or on-site hazardous waste
disposal facilities to qualify for conducting the
program. Control of all hazardous waste disposal
(both on-site and off-site), treatment and
storage facilities is required for full authori-
zation of State programs. In addition, to
obtain full approval the State program must
control generators and transporters of hazardous
waste under the manifest program. The manifest
program uses forms to track the movement and
ultimate disposal of hazardous wastes.
EPA may grant interim authorization to
States that currently operate hazardous waste
programs under State law. State programs need to
be substantially equivalent to the Federal
program promulgated by EPA in 40 CFR Part 250.
As a condition for granting interim authorization,
EPA will require the State to prepare an "authori-
zation plan". This plan should describe the
actions that the State will take to become
eligible for full authorization (e.g., adding to
or modifying State programs or laws, time schedule,
etc.).
11
-------
To obtain full authorization, the proposed
regulations require State programs to control:
° The same universe of hazardous wastes as
covered under EPA's criteria and listings
under Section 3001 of RCRA, and proposed
in 40 CFR Part 250, Subpart A;
° Hazardous waste generators and transporters,
using standards that are as stringent
as EPA proposed in 40 CFR Part 250,
Subparts B and C, including recordkeeping,
labeling, use of appropriate containers,
reporting, and management of a waste
tracking system using the Federal
manifest format;
° Treatment, storage, and disposal facilities.
Such facilities must not compromise the
human health and environmental standards
under proposed 40 CFR Part 250, Subpart D.
State UIC Programs
Under the Safe Drinking Water Act, States
identified by EPA as needing a UIC program are
"listed" in the Federal Register, Currently, 40
States have been listed and all States should be
listed by May, 1980.
State UIC programs are intended to impose
controls on well owners and operators. These
requirements will be incorporated as terms and
conditions in individual or area permits, or
classwide rules. In general, UIC permits
and rules will include terms and conditions
covering:
0 Essential construction features of
wells;
12
-------
0 Allowable well operating conditions;
° Specifications for monitoring and testing
well operations;
° Requirements for reporting operating
results:
° Corrective actions to be taken to prevent
fluid migration, and compliance schedules
for taking these actions;
° Right of access to well records and
facilities for the permitting agency;
0 Requirements concerning permit review,
modification, and termination.
Underground injection wells are divided into
five classes. Each class includes wells with
similar functions, construction, and operating
features so that technical requirements can be
applied consistently to the class. States may
receive approval to administer their own UIC
programs regulating either all ("full approval"
or "primacy") or some ("partial approval") of the
wells in the State. To obtain partial approval
it is not necessary for a State to regulate every
type of well which falls within one of the
five classes. For example, a State may be
partially approved to regulate only Frasch
process wells so long as the State has authority
to administer the whole regulatory program
with respect to that type of well. Thus, it would
not be acceptable for a State to regulate the
permitting of those wells, and expect EPA to
handle enforcement.
When a State is approved to administer a
partial program, EPA will be responsible for
administering the program over the other classes
13
-------
of wells or the other types of wells within a
class which are not covered by the State program.
{In addition, EPA will be responsible for adminis-
tering the UIC program on Indian lands.) However,
a State must have a fully approved program,
covering all wells found within the State, in
order for it to continue to be eligible for EPA
grants.
State NPDES Programs
In addition to the requirements of Subpart A,
State NPDES programs are governed by Subpart D
requirements. These set out both the State
program approval process and the operational
requirements for State programs. The NPDES State
program requirements contained in this proposal
are the same as those contained in the recently
revised NPDES regulations (44 FR 32854, June 7,
1979).
State 404 Programs
The section 404 permit program, which
regulates discharges of dredged or fill material
under the Clean Water Act, is operated Federally
by the Corps of Engineers. However, the law
allows States to apply to EPA for section
404 authority for regulating all "non-navigable"
waters within the State. The specific program
approval requirements and application procedures
for State section 404 programs were published in
Part 123 of the NPDES final regulations on
June 7, 1979 (44 FR 32854) and have been incorpo-
rated in Subparts A and E of the proposed consoli-
dated regulations. In addition, the States are
required to comply with the technical requirements
of 40 CFR Part 230.
14
-------
The administrative requirements for State
section 4U4 programs are now included in Subpart
E (sections 123.105 to 123.112). These sections
propose: permit application content requirements;
conditions and requirements for permits; general
permits for dredge or fill operations having
minimal environmental impacts; permit program
exemptions; a simplified application procedure;
permit review activities including public partici-
pation requirements; emergency procedures for
processing permit applications; and compliance
and violation reporting requirements.
The Army Corps of Engineers retains section
404 jurisdiction over certain waters within the
State (i.e., "Phase I" or "traditionally navigable"
waters) even after approval of a State program as
provided in section 404(g) of the Clean Water
Act. Therefore, the regulations require the
State to enter into an agreement with the Corps
precisely defining their respective jurisdictional
coverage.
V. WHEN SHOULD STATES APPLY?
For Authority to Operate Their Hazardous
Waste Program Under Federal Law
States may apply to EPA for authority to
operate their Hazardous Waste Management programs
under RCRA after EPA has formally promulgated its
section 3001 regulations defining what substances
are hazardous wastes. These were proposed
on December 18, 1978. Interested States are
encouraged to evaluate their legislation and
regulations to determine the adequacy of their
existing programs. EPA will not take formal
action on State RCRA applications until the
section 3001 regulations are issued in final
form.
15
-------
For Primary Enforcement Responsibility Under
the Underground Injection Control Program
Once final UIC program regulations have been
promulgated by EPA, a listed State may request
primacy by preparing and submitting its UIC
program plan to EPA within 270 days. States
listed after these regulations are final have 270
days to request primacy. The time for submission
may be extended an additional 270 days for good
cause. EPA must complete action on the application
within 90 days. States which are not listed may
apply for primacy any time after final promulgation
of the consolidated regulations. EPA must
establish a UIC program for any listed State that
does not assume primacy.
For NPPES Operating Authority
States applying for NPDES approval may do so
at any time. EPA has 90 days to make a decision
regarding approval.
For Authority to Operate Section 404 Programs
States may apply at any time to EPA to
conduct the section 404 program in certain waters
within their jurisdiction.
Applications will be reviewed by EPA and
other government agencies before a decision to
approve or deny is made. EPA is limited to 120
days to make its determination whether to
approve the State program.
16
-------
VI. EPA RESPONSIBILITIES AFTER PROGRAM APPROVAL
Once a State receives EPA approval to
conduct an MPDES, RCRA, UIC, or section 404
program, the State assumes the responsibility for
insuring that all program standards and requirements
are met. However, EPA retains the responsibility
to oversee State programs. This includes:
° Taking independent enforcement action
against violators of permit conditions
or other program requirements;
° Requiring revisions in State programs to
conform to changes in statutes, regulations,
etc.;
° Withdrawing approval of State programs
for good cause;
° Reviewing certain State-issued permits
and recommending changes in permit terms
or conditions, and in the case of NPDES
and section 404 programs, vetoing
proposed State permits which do not
comply with Federal requirements.
VII. SOME APPROACHES TO STATE IMPLEMENTATION
The proposed regulations require States to
meet certain minimum requirements for operating
each program. Neither the proposed regulations
nor EPA policies demand that States consolidate
their administration of these programs. On the
contrary, the proposed regulations allow State
governments complete freedom either to do nothing
or adapt their existing permit programs to
develop innovative permitting approaches to suit
needs within their jurisdictions.
17
-------
A number of States already have initiated
programs to coordinate and/or consolidate their
environmental review and permitting activities.
Some of these strive to coordinate the permitting
actions of independent State agencies. Others
are aimed at consolidating the State's permitting
strategies and resources. Some of the more
prominent examples are described below.
The Clearinghouse Approach
Several States have established clearinghouse
mechanisms to simplify the application process
and to coordinate action by State agencies.
Permit applicants are requested to complete a
master application form, which is then circulated
to all participating State agencies to determine
the applicant's need for various permits.
Participating State agencies are given a limited
time to respond and to indicate the need for
hearings. A permits coordinator "funnels"
information back and forth between the applicant
and State permitting agencies during the decision-
making period. The States of Washington, Oregon,
Maryland, and California have adopted similar
approaches for their permitting.
One-Stop Permit Service
To facilitate the permitting of new sources,
several States have initiated "one-stop" permit
service centers. These centers can be information
offices located throughout the State, as in the
State of Washington, or a special new projects
office or siting council. Functions vary between
States, but in general these one-stop centers
perform the following services:
° Advising applicants about the permit
requirements they will need to fulfill;
18
-------
0 Obtaining the necessary applications and
checklists for the developer;
0 Assisting applicants in interpreting and
completing application forms and checklists;
0 Coordinating and keeping track of State
agency actions on permits to eliminate
dupl ications;
0 Scheduling joint agency hearings on permit
applications. Notifying the public about
proposed and final permit and licensing
actions.
Uniform Permit Procedures
Certain States have enacted legislation
which requires some or all State permitting
agencies to have uniform permitting procedures,
including uniform application forms, draft permit
reviews, public hearings and comments, permit
decision-making and appeal procedures, and time
limits for agency action. The States of California,
Vermont, and Maryland have recently adopted such
uniform Statewide procedures.
VIII. ABOUT PUBLIC COMMENTS AND PARTICIPATION IN
HEARINGS
EPA welcomes public comments on the proposed
consolidated regulations. Please forward them by
September 12, 1979, to:
Edward A. Kramer (A-2)
Permits Division (EN-336)
401 M Street, S.W.
Washington, D.C. 20460
19
-------
EPA is interested in assuring that the
proposed consolidated permit regulations are
subject to public scrutiny and comment. In many
ways the proposed regulations attempt to strike a
balance between the specific goal of the individual
programs with the goal of developing uniform
requirements. Many issues are left unresolved or
were resolved knowing that public reaction would
be crucial to formulation of a final position.
The Agency is interested in receiving comments on
all aspects of these regulations including their
overall form and structure, areas where further
consolidation could be beneficial, areas where
consolidation went too far, and areas where
consolidation results in confusion. People
interested in submitting comments should read
both the regulations themselves and the preamble
discussion accompanying than.
The public is also invited to participate in
hearings that have been scheduled on the proposed
consolidated regulations during July. The
hearings will also be on the proposed consolidated
application form and the technical standards for
the UIC program (40 CFR 146). They will be held
in Dallas, Chicago, Seattle, and Washington, D.C.
For further details, contact Ms. Judy Shaffer at
the above office, telephone 202-755-0750.
Comments and hearings will play a major role in
determining the shape of the final regulations.
20
-------
ABOUT THIS GUIDE
This Guide is one in a series of pamphlets
which describe various EPA permit programs.
The full series includes:
. A Guide to New Regulations for NPDES...(C-1)
. A Guide to the Underground Injection
Control Program (C-2)
the,
. A Guide to^Proposed Consolidated Permit
Regulations (C-3)
. A Guide for States on Proposed Consolidated
Permit Regulations (C-4)
. A Guide to the Hazardous Waste Management
Program (C-5)
. A Guide to the Dredge or Fill Permit
Program (C-6)
. A Guide to the Consolidated Application
Form (C-7)
R OBTAIN copies of the regulations or guides
Write to:
U.S. Environmental Protection Agency
Public Information Center (PM-215)
401 M Street, S.W.
Washington, D.C. 20460
------- |